GNHW and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 80

GNHW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 80 (6 February 2025)
Applicant:GNHW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9326
Tribunal:Senior Member A Murphy
Place:Melbourne
Date:6 February 2025
Decision:The Tribunal affirms the decision under review.

Senior Member A Murphy
Statement made on 6 February 2025 at 8:43am
Catchwords
MIGRATION – decision of delegate of Minister to refuse to grant the applicant a protection visa – character test – s 501(6)(d) whether there is a risk the applicant would engage in criminal conduct if allowed to remain in Australia – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons

The Applicant seeks review of a decision made on 14 November 2024 to refuse to grant him a Permanent Protection Visa (Class XA) (the Protection Visa) on the basis that the Applicant does not pass the character test: s 501(1) of the Migration Act1958 (Cth) (the Act).
The Tribunal hearing was held on 22 January 2025 at the Tribunal’s Melbourne Registry. At the hearing the Applicant was unrepresented, and Ms S Liddy of Sparke Helmore Lawyers appeared for the Respondent. The Tribunal heard evidence from the Applicant and his aunt, Ms K, with the assistance of an interpreter in the Nuer and English languages.
For the following reasons I have decided to affirm the decision under review.
BACKGROUND
GNHW (the Applicant) is a 31-year-old male citizen of South Sudan. He arrived in Australia on 25 December 2017 as the holder of a Global Special Humanitarian (Class BA) (Subclass 202) visa.
On 8 January 2020, the Applicant was convicted of intentionally cause injury;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GNHW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 80
Case: [2025] ARTA 80
Decision Date: 6 February 2025

CaseChat Overview and Summary

GNHW, a citizen of South Sudan, applied for a protection visa in Australia following the cancellation of his Global Special Humanitarian visa. His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs, who found that GNHW did not pass the character test as there was a risk he would engage in criminal conduct if allowed to remain in Australia. The matter was brought before the Administrative Appeals Tribunal (AAT) for review. The primary legal issues for the AAT to decide were whether GNHW met the character requirements for a protection visa under s 501(6)(d) of the Migration Act, and whether the refusal was in the best interests of the minor children in Australia affected by the decision.

The AAT examined GNHW’s criminal history, including multiple charges and convictions, and noted the serious nature of the offences. The Tribunal also considered the risk to the Australian community should GNHW commit further offences. The AAT found that GNHW’s criminal conduct, including violent and public order offences, demonstrated a risk of reoffending. The Tribunal gave significant weight to the strength, nature, and duration of GNHW’s ties to Australia, particularly his close relationship with his minor nieces who reside with him. However, the Tribunal also considered the potential negative impact of GNHW’s criminal conduct on the children. The AAT concluded that the risk to the Australian community and the potential negative impact on the children outweighed the ties GNHW had to Australia, leading to the affirmation of the delegate’s decision to refuse the protection visa.

The AAT's decision was affirmed, and GNHW’s application for a protection visa was refused. The Tribunal found that the risk of GNHW engaging in further criminal conduct, coupled with the potential negative impact on the minor children in Australia, justified the refusal of the visa application. The Tribunal also noted that the best interests of the children required consideration, and while GNHW had a close relationship with them, the risk he posed to the community and to the children was significant.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons I have decided to affirm the decision under review.BACKGROUND GNHW (the Applicant) is a 31-year-old male citizen of South Sudan. He arrived in Australia on 25 December 2017 as the holder of a Global Special Humanitarian (Class BA) (Subclass 202) visa. On 8 January 2020, the Applicant was convicted of intentionally cause injury; drunk and disorderly in public place; drunk in a public place (two charges); fail to answer bail; and contravene a conduct condition of bail. The delegate’s decision records that the Applicant was sentenced by the Magistrates Court of Victoria to 24 months imprisonment and fined $1000.[1] [1] The Respondent’s Hearing Book lodged 15 January 2025 (‘Hearing Book’) at p 18. On 24 February 2020, the Applicant’s subclass 202 visa was mandatorily cancelled pursuant to section 501(3A) of the Act. On 27 November 2020, the County Court of Victoria set aside the sentence of the Magistrates Court in relation to the charge of intentionally cause injury, reducing the Applicant’s sentence to 7 months imprisonment.[2][2] Ibid p 80. On 23 December 2020 the Applicant applied for the Protection Visa.[3] On 17 June 2021 a delegate of the Minister produced a draft Protection Visa Assessment Record which recorded, among other things, that the delegate was satisfied that the Applicant was a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.[4][3] Ibid p 107.[4] Ibid p 32. On 15 December 2021, the Applicant was re-notified of the decision to cancel his subclass 202 visa. The Applicant made a request for revocation of the mandatory visa cancellation and on 4 October 2022 a delegate of the Minister decided not to revoke the visa cancellation. This was because the delegate was not satisfied that the Applicant passed the character test or that there was another reason why the cancellation decision should be revoked. On 23 December 2022 this Tribunal (differently constituted) affirmed the decision of the delegate not to revoke the mandatory visa cancellation.[5][5] Ibid p 383. On 30 August 2024 the Department issued the Applicant a Notice of Intention to Consider Refusal of the Protection visa (the NOICR) under s 501(1). The NOICR advised that the Department had information suggesting that the Applicant did not pass the character test because in the event he were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia: s 501(1)(6)(d)(i).[6] [6] Ibid p 151. On 14 October 2024 the Applicant’s legal representative responded to the NOICR by stating that the Applicant had instructed he did not wish to provide any substantive response to the NOIRC and requested that a decision be made in respect of his application as soon as possible. It was noted that these instructions were provided in the context of apparent frustration and despair at his ongoing detention and the requirement to continuously provide additional information in regard to his visa matters.[7] [7] Ibid p 207.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal assesses that the Applicant has strong ties to his immediate and extended family and lesser ties to the community. As noted above, the Applicant has no known living relatives in South Sudan. I give this factor significant weight in favour of the grant of the protection visa. Best interests of minor children in Australia affected by the decision Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[42]·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;·whether there are other persons who already fulfil a parental role in relation to the child; ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.[42] The Direction cl 8.4(4)(a)-(h). As noted above, the Applicant resides with the children of his sisters. Only two of those children are minors, being his youngest nieces who are both 10 years old. It is submitted that the Applicant enjoys a close relationship with those children, who see him daily and have known him for their entire lives. Little information has been produced in the current review about the Applicant’s relationship with these children. However, the earlier Tribunal reviewing the cancellation of the Applicant’s Subclass 202 visa, heard evidence that three of the Applicant’s nieces and nephews had no living parent, while the fourth had no living father. The Tribunal in that case accepted that the Applicant played a key male parental role in the lives of the four children, all of whom were minors at the time of that Tribunal’s decision.[43][43] Hearing book at p 416.

Ratio Decidendi

Legal Principle Established

I accept the Applicant was never charged with any offence relating to this incident, nor is there any other evidence of violence towards any member of his family. I give this factor some small weight in favour of refusing to grant the protection visa. The strength, nature and duration of ties to Australia This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Applicant has lived in Australia for seven years, after arriving at age 24. He lives with his mother, sister, and four nephews and nieces. His aunt, Ms K, and uncle are also in Australia and are supportive of the Applicant and his family. At hearing he gave evidence that he kept in touch with his nephews and nieces while in detention and that they visited him in detention. The materials indicate that the Applicant’s father, who was an English teacher, went missing in about 2012 for 2013 in Cairo and that one of his sisters died by suicide before the family travelled to Australia. The Applicant has no known living relatives remaining in South Sudan, while another sister lives in the Netherlands. I accept that should the Applicant not be granted a visa and allowed to remain in Australia permanently, the impact on his immediate and extended family will be significant and exacerbated by the loss the family has already endured.Other ties to the community The Applicant undertook English language studies after arriving in Australia, but was unable to find employment. At hearing he told me that he had some friends, who he went out with from time to time. The Tribunal assesses that the Applicant has strong ties to his immediate and extended family and lesser ties to the community. As noted above, the Applicant has no known living relatives in South Sudan. I give this factor significant weight in favour of the grant of the protection visa. Best interests of minor children in Australia affected by the decision